AFFIRM and Opinion Filed June 16, 2022

In the

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00760-CV

CITY OF DALLAS, Appellant

V.

LYNN PELTIER, Appellee

On Appeal from the County Court at Law No. 4

Dallas County, Texas

Trial Court Cause No. CC-20-04958-D

MEMORANDUM OPINION

Before Justices Carlyle, Smith, and Garcia

Opinion by Justice Carlyle

The City of Dallas appeals from the trial court’s order denying its plea to the 

jurisdiction. We affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.

Aaron Brewer drove a garbage truck for the City’s Department of Sanitation 

Services. In July 2020, he went to pick up trash in the alley behind Lynn Peltier’s 

home. According to his affidavit, “[w]hile operating the truck, [he] heard a loud 

whistling sound coming from somewhere behind the cab.” Mr. Brewer stopped in 

the alley next to Ms. Peltier’s property, and his affidavit described what happened 

next:
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Not knowing what [the noise] was, I exited the vehicle and saw flames 

shooting out from between the cab of the truck and the trash compactor. 

I jumped back into the cab of the vehicle and turned the truck off, at 

which point the flames were already engulfing the cab. I then ran to the 

passenger’s side of the cab to grab the fire extinguisher, but was unable 

to grab it due to the rapid spread of the flames. I ran a safe distance 

from the vehicle and immediately dialed 9-1-1 and my supervisor.

By the time I realized that the truck was on fire, I could not drive the 

vehicle out of the alley, or I would have been burned. I was unaware 

that the vehicle had any mechanical or fuel line issues at the time of the 

fire, having performed a pre-trip inspection that morning without 

incident.

Before firefighters could extinguish the flames, the fire spread to Ms. Peltier’s 

property, damaging her fence, gate, landscaping, irrigation system, and gazebo. One 

of the firefighters who responded to the scene allegedly told Mr. Brewer that an 

electrical failure probably caused the fire.

Ms. Peltier sued the City under the Texas Tort Claims Act (TTCA), see TEX.

CIV. PRAC. & REM. CODE §§ 101.021, .025, initially alleging both that the City was 

negligent in maintaining the truck and that its driver acted negligently. After the City 

answered, Ms. Peltier amended her complaint to remove allegations of negligent 

maintenance, focusing solely on Mr. Brewer’s alleged negligence. A few months 

later, the City filed its plea to the jurisdiction, arguing it was immune from Ms. 

Peltier’s suit because her claims were “essentially that the City was negligent in 

failing to maintain its trash truck,” and “the City’s evidence conclusively establishes 

that its employee, Aaron Brewer III, did not act negligently.”
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With respect to its second contention, the City relied on Mr. Brewer’s affidavit

to argue that “there simply was no time after he heard the sound for him to move the 

truck so as to prevent damage to Plaintiff’s property.” And, according to the City, 

Mr. Brewer “acted exactly as a person of ordinary prudence would have acted under 

the same or similar circumstances: he got a safe distance away from the burning 

vehicle and called 9-1-1.”

Ms. Peltier responded that she was no longer arguing the City was liable for 

failing to maintain the truck. And with respect to Mr. Brewer’s negligence, she 

asserted there were fact issues as to whether Mr. Brewer acted in a reasonable 

manner. She pointed out that Mr. Brewer was driving the vehicle when he first 

realized there might be an issue, but instead of parking the truck in a safe location, 

he parked it near her house, which foreseeably caused her damages.

The trial court continued the initial hearing on the City’s plea to allow Ms. 

Peltier to conduct discovery. Both parties then submitted additional evidence for the 

court’s consideration. In her supplemental response, Ms. Peltier pointed to testimony 

from Mr. Brewer’s supervisor that, according to the City’s training, if a driver hears

something wrong with the truck, the driver is supposed to pull over to a safe location, 

turn the engine off, grab the fire extinguisher, and then go inspect the truck to 

determine the problem. Yet, Mr. Brewer did not pull over to a safe location, did not 

immediately turn off the engine, and did not grab the fire extinguisher before 
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inspecting the truck. Thus, she argued, there is a fact issue as to whether Mr. Brewer 

acted negligently.

After the re-convened hearing, the trial court denied the City’s plea, and we 

review that decision de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 

217, 226 (Tex. 2004). Where, as here, a plea to the jurisdiction challenges the 

existence of jurisdictional facts, we must consider relevant evidence submitted by 

the parties as necessary to resolve the jurisdictional issues. Id.; State v. Holland, 221 

S.W.3d 639, 643 (Tex. 2007). A plea should not be granted if a fact issue is presented 

as to the court’s jurisdiction. Miranda, 133 S.W.3d at 228; Holland, 221 S.W.3d at 

643. When reviewing an evidence-based plea implicating the merits of the case, we 

apply a standard similar to that applied in a summary judgment. Miranda, 133 

S.W.3d at 228. We take as true all evidence favorable to the nonmovant, both 

indulging every reasonable inference and resolving any doubts in the nonmovant’s 

favor. Id.

Trash collection is a governmental function for which municipalities are 

generally immune. See TEX. CIV. PRAC. & REM. CODE § 101.0215(a)(6). 

Nevertheless, immunity is waived under the TTCA to the extent a plaintiff asserts a 

claim for property damage that is proximately caused by a municipal employee’s 

negligence, if: (1) “the property damage . . . arises from the operation or use of a 
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motor-driven vehicle”; and (2) “the employee would be personally liable to the 

claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE § 101.021(1).

The City contends the trial court erred by denying its plea, because its 

evidence conclusively shows Ms. Peltier’s damages arose neither from Mr. Brewer’s 

negligence nor his use of the City’s truck. We disagree.

As an initial matter, we reject the City’s argument that Ms. Peltier’s claim is

actually based on negligent maintenance1and that she cannot defeat immunity 

through what it describes as artful pleading. The City’s argument ignores the fact 

that Ms. Peltier’s original petition also alleged liability based on Mr. Brewer’s 

conduct. The fact that Ms. Peltier later dropped her negligent maintenance 

allegations does not affect her allegations concerning Mr. Brewer, which she has 

consistently maintained. We reject the City’s invitation to recharacterize Ms. 

Peltier’s petition amendments.

We also reject the City’s argument that Ms. Peltier did not allege a claim 

arising out of Mr. Brewer’s “operation or use of” the City’s garbage truck. Id.

1 The City contends it is immune from a negligent-maintenance claim, relying on cases from our sister 

courts. See, e.g., Tex. Dep’t of Criminal Justice v. Pike, No. 10-19-00696-CV, 2020 WL 6326469, at *3 

(Tex. App.—Waco Oct. 28, 2020, no pet.) (mem. op.); Harlingen Consol. Indep. Sch. Dist. v. Miranda, No. 

13-18-00391-CV, 2019 WL 1187151, at *3 (Tex. App.—Corpus Christi–Edinburg Mar. 14, 2019, no pet.) 

(mem. op.); San Antonio Indep. Sch. Dist. v. Hale, No. 04-18-00102-CV, 2018 WL 3129436, at *3 (Tex. 

App.—San Antonio June 27, 2018, no pet.) (mem. op.); Tex. Juvenile Justice Dep’t v. PHI, Inc., 537 S.W.3d 

707, 713 (Tex. App.—Fort Worth 2017), rev’d on other grounds, 53 S.W.3d 296 (Tex. 2019). The supreme 

court, however, has declined to resolve the issue, see PHI, Inc. v. Tex. Juvenile Justice Dep’t, 593 S.W.3d 

296, 306 n.2 (Tex. 2019), and we decline as well because Ms. Peltier’s live petition does not allege a 

negligent-maintenance claim.
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§ 101.021(1)(A). According to the City, the truck did not cause Ms. Peltier’s 

damages; the fire did. And then, the City says, because Ms. Peltier acknowledged 

that Mr. Brewer did not cause the fire, she cannot claim his use of the truck caused 

her damages. Moreover, the City posits, to the extent Ms. Peltier contends Mr. 

Brewer should have moved the truck to a safe location after discovering the fire, her 

claim is impermissibly based on Mr. Brewer’s nonuse of the truck.

The City’s argument mischaracterizes the nature of Ms. Peltier’s claim. Her 

claim is not based on Mr. Brewer either causing the fire or failing to move the truck 

after discovering the fire; her claim is based on Mr. Brewer negligently operating the 

truck before discovering the fire. The record includes evidence Mr. Brewer’s job was 

operating the truck, a vehicle that required a pre-operation inspection. We agree with 

Ms. Peltier that there are fact issues as to whether Mr. Brewer’s alleged negligence 

caused her damages. 

With respect to Mr. Brewer’s decision to park the truck next to Ms. Peltier’s 

property, the supreme court has explained that negligently parking a vehicle can 

provide a basis for immunity waiver if the negligent parking causes the plaintiff’s 

damages. See PHI, Inc. v. Tex. Juvenile Justice Dep’t, 593 S.W.3d 296, 306 n.2 (Tex. 

2019). Here, the record does not conclusively establish that Mr. Brewer acted 

reasonably in parking the malfunctioning truck next to Ms. Peltier’s property. 

Indeed, Mr. Brewer’s affidavit does not state exactly where he was when he first 
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heard the whistle. Nor does it state how much time elapsed between when he heard 

the whistle and when he exited the truck in front of Ms. Peltier’s property. Thus, the

record does not establish the City’s speculation that “there simply was no time after 

[Mr. Brewer] heard the sound for him to move the truck so as to prevent damage to 

Plaintiff’s property.”

To the extent the City argues Mr. Brewer could not have foreseen that the truck 

would catch fire next to Ms. Peltier’s property, his supervisor testified that, according 

to the City’s training, Mr. Brewer was supposed to shut off the engine and grab the 

fire extinguisher before getting out to investigate any potential malfunction. This 

suggests Mr. Brewer knew or should have known there was a risk of a potential fire, 

and confirms the somewhat specialized nature of operating this truck. Moreover, 

although there was some evidence suggesting an electrical malfunction was 

responsible for causing the fire, the City’s evidence does not establish that Mr. 

Brewer’s decision to leave the engine running while investigating the source of the 

malfunction, contrary to the City’s training, did not exacerbate the fire or contribute

to its spreading to Ms. Peltier’s property.

On this record, the City’s evidence does not negate jurisdiction as a matter of 

law, and we are bound to allow this case to continue to trial for a determination on 

the merits.
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We affirm the trial court’s order denying the City’s plea to the jurisdiction.

210760f.p05

/Cory L. Carlyle/

CORY L. CARLYLE

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CITY OF DALLAS, Appellant

No. 05-21-00760-CV V.

LYNN PELTIER, Appellee

On Appeal from the County Court at 

Law No. 4, Dallas County, Texas

Trial Court Cause No. CC-20-04958-

D.

Opinion delivered by Justice Carlyle. 

Justices Smith and Garcia 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED.

Judgment entered this 16th day of June, 2022.